Why Greater Lafayette is filing lawsuits against opioid industry, and how they can succeed

The prescription pain reliever Fentanyl stored in an ambulance Wednesday, May 10, 2017, at Tippecanoe Emergency Ambulance Service at St. Elizabeth Central. Fentanyl-laced heroin has been found in Tippecanoe County.(Photo: John Terhune/Journal & Courier, John Terhune/Journal & Courier)Buy Photo

LAFAYETTE, Ind. —- Recent headlines would suggest nearly every city, county and state is suing pharmaceutical companies and distributors for their roles in an opioid epidemic.

And it would be somewhat accurate.

Taft Stettinius & Hollister is representing more than 300 local and state government entities, including Tippecanoe County, in its lawsuits, said Manny Herceg, an attorney for the firm.

Indianapolis-based law firm Cohen & Malad is representing Lafayette, West Lafayette and dozens of cities and counties in the state. Other firms are representing dozens more government entities around the nation.

"Joining the lawsuits adds more strength," said West Lafayette Mayor John Dennis, who said on March 1 that the city plans to file its own lawsuit.

"There is no easy solution and no precedent for such an action," Taft Stettinius & Hollister and other firms told Tippecanoe County this month in their memorandum of understanding to represent the county in its lawsuit.

But the local government entities say they see no choice but to file those suits.

"A lawsuit is no more difficult than solving the problem itself," said Lafayette Mayor Tony Roswarski, whose city filed the lawsuit in November.

Where did it begin?

Accidental drug overdose deaths in Tippecanoe County from 1993 to 2013. In 2017, 21 residents died of drug overdoses.(Photo: Thomas Maxfield/Journal & Courier)

"The seeds for what we have now were planted in the 1990s," Kelly said.

TV commercials for drugs took off in 1997 with the Food and Drug Administration relaxing its regulation. The ways doctors and patients looked at pain had also changed, Kelly said.

"Physicians were encouraged to think about pain more," Kelly said. "(And) patients were asking for those medications."

Taking prescription painkillers became more normalized. Spikes in heroin and other illicit drug usages followed.

Costs keep adding up

Naloxone is an emergency opioid-inhibiting drug used to halt overdoses. Naloxone is often delivered via nasal spray, and is commonly called by the brand-name Narcan.(Photo: File)

The epidemic did not spare Greater Lafayette. By earlier this decade, government entities began to recognize the full extent of the crisis. Overdose calls and emergency room visits added up. So did the number of drug-related arrests and the number of hepatitis C cases.

"DEA is the only entity that has the full picture of the supply and demand, " said Jill Courtney, spokesperson for the alliance. "Distributors only know what they are shipping to a particular pharmacy."

Parker's claims about the DEA are part of why Kelly is skeptical of the lawsuits, although Kelly stressed that he is not a legal expert.

"We got multiple institutions that got involved in oversight of this (epidemic)," Kelly said. "It leads to diffusion of responsibility."

It's not just the pharmaceutical manufacturers and distributors who are to blame for the epidemic, he said.

"This is a story of multi-institution failure," Kelly said. "There are multiple institutions that could have sound the alarm but didn't."

The lawsuits make other allegations that increase their chances of success, said Nicolas Terry, a professor at Indiana University Robert H. McKinney School of Law and the executive director of the Hall Center for Law and Health.

The defendants would have a higher chance of losing the lawsuits on the claim that they had ignored signs of suspiciously large orders or had exaggerated long-term benefits and minimized addictive risks of the drugs, Terry said.

Furthermore, Terry said the sheer magnitude of the lawsuits may encourage the distributors and manufacturers to settle.

"Even though the cases aren't the easiest to win, if you have this many plaintiffs and lawsuits that seem to be this well funded, that creates an extreme risk for pharmaceutical companies," Terry said. "I would be extremely surprised if this does not end in a settlement."

Terry expects the settlement to come sooner, perhaps by next year. But local officials are gearing up for a potentially longer fight.